Findlaw Case Summaries

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April 6-10, 2009:

U.S. Supreme Court, April 06, 2009 Corley v. US, No. 07-10441 Defendant’s bank robbery conviction is vacated, where the District Court erred by denying Defendant’s motion to suppress his confession under McNabb v. US, 318 U.S. 332 (1943), and Mallory v. US, 354 U.S. 449 (1957), based on the government’s delay in bringing him before a judge, where 18 U.S.C. section 3501 modified McNabb-Mallory but did not supplant it. …

U.S. 1st Circuit Court of Appeals, April 09, 2009 US v. Gonz├ílez-Castillo , No. 07-2134 Sentence for unlawfully entering the U.S. after being previously deported is reversed and remanded where a clear and obvious error occurred when the court based defendant’s sentence on unsupported factual assertions, such that the error affected the defendant’s substantial rights and impaired the fairness of defendant’s sentence. .

U.S. 2nd Circuit Court of Appeals, April 06, 2009 US v. Hertular, No. 07-1453 Conviction for drug and drug-related crimes is affirmed in part, reversed in part, and vacated and remanded where: 1) the evidence was insufficient to support defendant’s conviction for forcibly impeding or intimidating a federal officer under 18 U.S.C. sec. 111(a)(1) as the agents were not being threatened with immediate harm; 2) defendant’s sufficiency challenge to his obstruction of justice conviction was patently without merit; 3) there was no plain error in the district court’s jury instructions regarding the specific intent element of the obstruction of justice charge; and 4) although defendant’s sentence is vacated in light of the reversal of his sec. 111 conviction, there is still no merit to defendant’s procedural challenges to his sentence.

U.S. 2nd Circuit Court of Appeals, April 06, 2009 US v. Kopp , No. 07-2797 Conviction for intentionally inflicting on a person, because that person was a provider of reproductive health services, an injury resulting in death is affirmed where: 1) district court properly denied defendant’s motion to suppress evidence as untimely, and defendant provided no valid basis for a claim for relief from the Fed. R. Crim. P. rule 12(e) waiver; 2) court did not err when it granted government’s motion to introduce defendant’s statements in redacted form as the redacted portions had no bearing on the jury’s consideration; and 3) the court did not err in precluding defendant from asserting a justification defense and instructing the jury that it was not to consider a justification defense, as the evidence was insufficient to support that defense under any reasonable articulation.

U.S. 2nd Circuit Court of Appeals, April 08, 2009 US v. Martinucci, No. 08-0104 Sentence for production of child pornography is affirmed where: 1) there is no merit to defendant’s claim that the court erred in considering hearsay information in determining the appropriate sentence; and 2) the court did not exceed its sentencing discretion in departing upward under U.S.S.G. sec. 5K2.8 and imposing a term of imprisonment of 300 months, considering the seriousness of the offense and the great harm inflicted on the victim as well as the defendant’s recidivism and lack of remorse.

U.S. 2nd Circuit Court of Appeals, April 09, 2009 US v. Robles, No. 07-1013 Conviction and sentence for conspiracy to commit Hobbs Act robbery is affirmed where: 1) the district court did not err in calculating defendant’s Sentencing Guidelines range as it properly considered the robberies as objects of the conspiracy even though the robberies were not identified as objects of the conspiracy in the conspiracy count of the indictment; and 2) the court properly enhanced defendant’s sentence sentence based on its finding that the robberies were objects of the overall conspiracy of which defendant was convicted, despite being acquitted of the robbery charge itself.

U.S. 2nd Circuit Court of Appeals, April 09, 2009 US v. McCourty , No. 07-3862 Conviction and sentence for drug crimes is affirmed and rewhere: 1) no constructive amendment resulted when the district court broke the single offense into two parts to be addressed by the jury as neither the trial evidence nor the jury charge altered the superseding indictment; 2) there is no double jeopardy violation in the government’s pursuance of a retrial of the one count of the indictment left undecided by the jury as there was neither a complete acquittal on the count nor an acquittal relating to a key factual element of the crime described in the count; and 3) the court did not abuse its discretion in denying defendant’s motion for a new trial. Case is remanded for the limited purpose of allowing the district court to re-sentence in light of the Supreme Court’s decision in Kimbrough.

U.S. 2nd Circuit Court of Appeals, April 09, 2009 US v. Josephberg, No. 07-3958 Conviction for tax offenses and health care fraud is affirmed where: 1) the government presented sufficient evidence to support defendant’s conviction for income tax evasion and health care fraud; 2) defendant’s conviction for willful failure to file timely income tax returns and willful failure to pay tax did not violate the Fifth Amendment privilege against self incrimination as the pendency of a government investigation does not give a taxpayer a Fifth Amendment option to fail to file a tax return; 3) defendant did not provide sufficient evidence to support his allegations of prosecutorial misconduct; 4) the court did not err in refusing to give jury instruction defendant requested; and 5) the court did not err in in sentencing calculations.

U.S. 5th Circuit Court of Appeals, April 06, 2009 US v. Moody, No. 07-11222 Defendants’ drug convictions and sentences are affirmed, where: 1) Defendant knowingly directed customers to a co-conspirator to buy drugs; and 2) prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy.

U.S. 5th Circuit Court of Appeals, April 06, 2009 US v. Delgado-Martinez, No. 08-50439 Defendant’s sentence for reentry into the U.S. following removal is vacated, where the District Court erred by calculating Defendant’s Guidelines range based on an improper probation enhancement, and the District Court incorrectly believed it was sentencing at the low end of the Guidelines range.

U.S. 5th Circuit Court of Appeals, April 09, 2009 US v. Ruiz-Arriaga, No. 08-40242 Sentence for reentry into the U.S. following removal is affirmed, where: 1) Defendant’s counsel in the District Court advocated a sentencing range now disavowed by his appellate counsel, and thus Defendant invited the error; and 2) Defendant suffered no prejudice from the error.

U.S. 6th Circuit Court of Appeals, April 08, 2009 US v. Vandewege, No. 07-2250 Defendant’s drug sentence is vacated, where the Sentencing Commission retroactively lowered the sentencing range of his offense’s term of imprisonment after he was sentenced. .

U.S. 6th Circuit Court of Appeals, April 09, 2009 US v. Garcia-Robles, No. 07-2209 Defendant’s sentence for reentry into the U.S. following removal is vacated, where the District Court’s sentence was procedurally unreasonable because Defendant did not know that the District Court was contemplating an upward variance at the time of his sentencing hearing and had no meaningful opportunity to object to that variance.

U.S. 7th Circuit Court of Appeals, April 06, 2009 US v. Ozuna, No. 07-2480 Conviction for drug crimes is affirmed where: 1) district court did not abuse its discretion in reopening the suppression hearing and considering expert handwriting testimony; 2) court did not err by failing to conduct a Daubert analysis prior to considering the handwriting testimony, as it is not required to do so in a pre-trial suppression hearing; and 3) the court did not err in excluding defendant’s proffered evidence.

U.S. 7th Circuit Court of Appeals, April 06, 2009 Williams v. Thurmer , No. 08-1184 Denial of petition for habeas relief is affirmed where testimony of the bailiff did not violate plaintiff’s due process rights as bailiff’s interaction with the jurors was not substantial enough to raise due-process concerns.

U.S. 7th Circuit Court of Appeals, April 06, 2009 US v. Kingcade, No. 08-2447 Appeal of district court’s refusal to consider defendant’s pro se motion to suppress evidence seized during the execution of search warrants is dismissed where defendant did not preserve the right to appeal an adverse determination regarding his pro se motions in his plea agreement, and the present court therefore lacks jurisdiction to review his claim.

U.S. 7th Circuit Court of Appeals, April 06, 2009 US v. Huffstatler , No. 08-2622 Sentence for producing child pornography is affirmed where there was no plain error in defendant’s sentence, as the district court was not obligated to sentence him below the range recommended by sentencing guidelines for child pornography, and the sentence was reasonable.

U.S. 8th Circuit Court of Appeals, April 06, 2009 Reed v. City of St. Charles, No. 07-2713 In a civil rights action, district court’s grant of defendant’s motion for summary judgment is affirmed where the court did not in holding that plaintiff failed to carry his burden to offer sufficient evidence that police used excessive force in carrying out his arrest. .

U.S. 8th Circuit Court of Appeals, April 06, 2009 US v. Teeter , No. 07-3631 Conviction and sentence for possession of firearms and explosives is affirmed where: 1) district court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea as his claim that he was unaware of the consequences of the plea is contradicted by the record; and 2) court did not err in increasing defendant’s base offense level under the sentencing guidelines as the evidence was sufficient to support an enhancement under U.S.S.G. section 2K2.1(b)(3)(A) for possession of a portable rocket or missile.

U.S. 8th Circuit Court of Appeals, April 06, 2009 US v. Elbert , No. 08-1247 Conviction for sex trafficking of a child is affirmed where the district court did not err in denying defendant’s motions to admit evidence that the the children engaged in other acts of prostitution as the exclusion of the evidence did not violate the defendant’s constitutional rights and was thus inadmissible under Fed. R. Evid. 412.

U.S. 8th Circuit Court of Appeals, April 06, 2009 US v. Thompson , No. 08-1568 Conviction and sentence for firearms possession and drug crimes is affirmed where: 1) the district court did not err in instructing the jury in the disjunctive as proof of possession of either firearms or ammunition was sufficient to support a conviction under 18 U.S.C. sec. 922(g)(1); 2) evidence was sufficient to prove defendant used, carried and brandished a firearm in connection with a drug transaction; and 3) district court did not err in overruling defendant’s objection to the prosecutor’s rebuttal during closing argument as the remarks did not constitute an improper comment on defendant’s decision not to testify and did not improperly shift the burden of proof.

U.S. 8th Circuit Court of Appeals, April 07, 2009 US v. Parks , No. 06-4051 Conviction for drug crimes is reversed in part and remanded for resentencing where the record is not sufficiently developed to determine whether defendant’s prior conviction for his walkway escape under Mo. Rev. Stat. sec. 575.210 constituted a career-offender-qualifying escape from custody or a non-qualifying failure to return or report to custody, for purposes of the career offender provisions.

U.S. 8th Circuit Court of Appeals, April 08, 2009 US v. Bentley , No. 07-2533 Conviction on charges related to child pornography is affirmed where: 1) the district court did not violate defendant’s Sixth Amendment rights by limiting cross-examination of government witnesses; 2) prosecutor’s comments during closing arguments did not improperly shift the burden of proof, and the reference to defendant as a sexual predator was not prejudicial misconduct; 3) prosecutor’s comments were focused on credibility evidence and the jury’s role in assessing credibility and did not amount to a personal opinion on witnesses’ credibility; and 4) admission of evidence that defendant sexually abused other girls was proper under Fed R. Ev. rule 414.

U.S. 8th Circuit Court of Appeals, April 08, 2009 US v. Bennett, No. 08-1399 Sentence for drug crimes is affirmed where the district court did not abuse its discretion when it continued defendant’s revocation hearing to a later date so that the parties could present additional evidence, or when it revoked her term of supervised release.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US v. Villareal-Amarillas , No. 07-3616 Sentence for drug crimes is affirmed where: 1) defendant’s due process rights were not violated as the due process clause does not require the government to prove by clear and convincing evidence the facts that produce a substantial increase in the advisory guidelines range, but rather by a preponderance of the evidence, even if the fact finding has an extremely disproportionate effect on a defendant’s sentence; and 2) the court properly considered the 18 U.S.C. sec. 3553(a) sentencing factors and was not required to recite each factor at sentencing.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US. v. Chief, No. 08-1121 Conviction for sexual abuse is affirmed where: 1) defendant’s double jeopardy rights were not violated as defendant committed two distinct sex acts within a single course of conduct, that were separate offenses; 2) the charged offenses of attempted sexual abuse of a minor and abusive sexual contact have different statutory elements; and 3) evidence was sufficient to support defendant’s convictions.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US v. Sonczalla, No. 08-1249 Conviction for firearms possession is affirmed where: 1) defendant’s right to possess arms had never been restored under Minnesota law after his previous conviction and thus his civil rights had never been restored with respect to his 1982, 1984, 1988 and 1989 convictions, and those convictions constituted predicate offenses under the Armed Career Criminal Act; and 2) district court did not err in sentencing defendant as an armed career criminal subject to a mandatory minimum 15-year sentence as his conviction for third-degree burglary qualified as a predicate violent felony.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US v. LaDue, No. 08-1449 Conviction for firearms possession is affirmed where: 1) district court did not err in allowing police officer to testify that he was responding to a report of shots fired as the testimony was admissible under Fed. R. Ev. rules 403 and 404(b); 2) even if admission of testimony about defendant’s aggressive behavior was in error under rule 403, the error was harmless; and 3) evidence was sufficient to support defendant’s conviction.

U.S. 8th Circuit Court of Appeals, April 09, 2009 Byers v. US , No. 08-1661 Denial of defendant’s pro se motion to vacate, set aside, or correct the sentence imposed against him is affirmed where: 1) district court did not err in finding plaintiff’s petition untimely as it was not filed within one year of his judgment of conviction; and 2) the actions of plaintiff’s attorney do not warrant an application of the doctrine of equitable tolling as ineffective assistance of counsel caused by an attorney’s negligence or mistake is not considered an extraordinary circumstance to warrant equitable tolling.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US v. Byers, No. 08-2014 Sentence for drug offenses is affirmed where defendants were not entitled to a reduction of sentence under Amendment 706 to the U.S. Sentencing Guidelines as any reduction in their advisory guidelines range resulting from application of the Amendment was overridden by the statutory minimum sentences applicable to their offenses.

U.S. 8th Circuit Court of Appeals, April 09, 2009 US v. Miller, No. 08-3042 Sentence for weapons offenses is affirmed where the district court did not err in applying a two-level enhancement under US Sentencing Guidelines sec. 2K2.1(b)(1)(A) for possession of three to seven firearms as defendant had sufficient control, ownership and dominion of the weapons for them to be considered in her possession.

U.S. 8th Circuit Court of Appeals, April 10, 2009 US v. Barrera , No. 08-2066 Sentence for drug crimes is affirmed where: 1) district court did not err in assessing two additional points to defendant’s criminal history score under Guidelines Sec. 4A1.1(d) as he committed the offense while on probation, despite his intervening deportation; and 2) defendant had three criminal history points and was thus ineligible for safety-valve relief under 18 U.S.C. sec. 3553(f). .

U.S. 8th Circuit Court of Appeals, April 10, 2009 US v. Viezcas-Soto, No. 08-2339 Sentence for illegally reentering the U.S. following deportation is vacated and remanded for resentencing where the district court erred in imposing a 16-level enhancement to defendant’s sentence under U.S.S.G. sec. 2L1.2(b)(1)(A), as the government failed to prove that defendant’s California conviction for statutory rape was a felony conviction within the meaning of the statute.

U.S. 9th Circuit Court of Appeals, April 10, 2009 US v. Lazarenko, No. 06-10592 Defendant Ukrainian ex-prime minister’s money laundering and fraud convictions are affirmed in part, where it was not necessary to plead a violation of Ukrainian law in the indictment, but reversed in part, where concealing the source of fraudulently obtained property does not amount to wire fraud.

U.S. 10th Circuit Court of Appeals, April 06, 2009 US v. Erickson, No. 08-4025 Defendants’ convictions for obstructing a grand jury are affirmed, where: 1) the government’s evidence showed how their conduct obstructed the grand jury investigation; and 2) there was no evidence that the government knew of an allegedly exculpatory document.

U.S. 10th Circuit Court of Appeals, April 07, 2009 US v. Patterson, No. 05-6386 Defendant’s drug sentence is affirmed, where the District Court properly classified Defendant as a “career offender” under U.S.S.G. section 4B1.1 because Defendant had prior convictions for first-degree burglary and drug distribution.

U.S. 10th Circuit Court of Appeals, April 08, 2009 US v. Scoville, No. 07-8094 Defendant’s firearm sentence is affirmed, where the District Court properly enhanced Defendant’s sentence under the Armed Career Criminal Act (ACCA) because Defendant’s three prior burglary convictions constituted violent felonies under the ACCA.

U.S. 11th Circuit Court of Appeals, April 07, 2009 US v. Jimenez, No. 08-14192 Defendant’s drug conviction is affirmed, where the evidence was sufficient to show Defendant’s connection to the marijuana found in the house in which he resided, because he admitted to an officer that he had participated in growing the marijuana and there was a large quantity found in the house.

U.S. 11th Circuit Court of Appeals, April 08, 2009 Noriega v. Pastrana, No. 08-11021 The denial of Petitioner’s habeas petition is affirmed, where Section 5 of the Military Commissions Act of 2006 precludes Petitioner from invoking the Geneva Convention Relative to the Treatment of Prisoners of War as a source of rights in a habeas proceeding.

U.S. 11th Circuit Court of Appeals, April 09, 2009 Hollingsworth v. Atty. Gen. of Fla., No. 06-14599 The denial of Petitioner’s habeas petition is reversed, where, under Jiminez v. Quarterman, 129 S. Ct. 681 (2009), Petitioner’s petition was not time-barred because his out-of-time state court appeal tolled the limitations period applicable to the petition.

Supreme Court of California, April 09, 2009 People v. Story , No. S161044 Court of Appeals judgment holding that trial court prejudicially erred in admitting evidence of defendant’s other sexual assaults and that the evidence did not support a first degree murder verdict is reversed and remanded where: 1) a defendant accused of murder during the course of a rape is accused of a sexual offense within the meaning of Evidence Code sec. 1108, and thus the trial court properly admitted evidence of defendant’s other sexual offenses under sec. 1108; and 2) ample evidence supports the jury’s verdict of first degree felony murder.

New York Court of Appeals, April 07, 2009 People v. Fuentes, No. 35 Defendant’s rape conviction is affirmed, where the prosecution failed to disclose a psychological evaluation of the victim to Defendant before trial, but the document was not material and hence there was no Brady violation.

New York Court of Appeals, April 07, 2009 People v. Contreras, No. 37 Defendant’s conviction for assault against his ex-wife is affirmed, where the trial court properly excluded the victim’s notes relating to her relationship with another man, because the notes were irrelevant to the charges, and given the sensitivity of the material the court properly conducted an ex parte hearing on their admissibility.

California Appellate Districts, April 06, 2009 People v. Samaniego, No. B205512 Conviction for first degree murder is affirmed where: 1) court did not err in the instructions made to the jury in accordance with CALCRIM Nos. 400, 1403 and 224; 2) court did not abuse its discretion by excluding third party culpability evidence; 3) there was sufficient corroborating evidence to support the truthfulness of the accomplice testimony; and 4) trial court erred in excluding expert testimony on gang behavior, but the error was harmless. Case is remanded with directions to correct defendant’s abstracts of judgments to reflect that the victim restitution is imposed jointly and severally, and to strike the parole revocation fines. .

California Appellate Districts, April 07, 2009 People v. Valenzuela, No. B209837 Trial court’s order imposing a $300 fine under Penal Code section 290.3(a) for failure to register as a sex offender is affirmed and modified where the amount of the fine imposed constituted an unauthorized sentence, that may be corrected at any time. The judgment is modified to a $200 section 290.3(a) fine, as well as a state surcharge, state court construction fee, and other penalty assessments.

California Appellate Districts, April 07, 2009 In re Lazor, No. H032842 Trial court’s order directing the Board of Parole Hearings to conduct a new parole suitability hearing is affirmed and modified where: 1) the Board’s decision identified immutable factors but did not expressly rely upon plaintiff’s lack of insight or ability to conform his behavior to the law upon release; and 2) the Board failed to relate the identified immutable factors to circumstances that would make them probative of plaintiff’s current dangerousness.

California Appellate Districts, April 08, 2009 People v. Burns, No. B205324 Conviction for robbery is affirmed where the trial court did not err in not instructing the jury on a lesser included offense, as a purse snatch is a robbery and there is no substantial evidence that what occurred was anything less.

California Appellate Districts, April 08, 2009 People v. Pearl, No. G041316 Conviction for burglary and receiving stolen property is reversed where the trial court erred in denying defendant’s motion to suppress evidence as the prosecution did not meet its burden imposed by California law and the Fourth Amendment of establishing at the suppression hearing that defendant was on parole when the warrantless searches were conducted. .

California Appellate Districts, April 09, 2009 People v. Dyke, No. A117955 Conviction for sending or exhibiting harmful matter to a minor is reversed and remanded for resentencing where there was insufficient evidence in the record to hold that the television images as described by the minor met the test for harmful matter under Penal Code section 288.2.

Texas Court of Criminal Appeals, April 08, 2009 Gamboa v. State, No. AP-75635 Defendant’s capital murder conviction is affirmed, where: 1) the evidence was sufficient based on witness statements, DNA and fingerprint evidence; 2) the trial court properly dismissed a juror who was arrested for driving while intoxicated; and 3) the trial court gave an instruction to cure a bystander’s outburst.

Texas Court of Criminal Appeals, April 08, 2009 Terrell v. State, No. PD-0922-07 Defendant’s indecent exposure conviction is vacated, where the Court of Appeals erred by failing to determine whether Defendant preserved his due course of law objection for appellate review.

Texas Court of Criminal Appeals, April 08, 2009 Hayden v. State, No. PD-0860-07 Defendant’s murder conviction is affirmed, where the trial court properly excluded evidence during the penalty phase that the victim was a sex offender because it was irrelevant and would tend to encourage the jury to measure the victim’s value compared to other members of society.

Texas Court of Criminal Appeals, April 08, 2009 Pena v. State, No. PD-1411-07 Defendant’s drug conviction is affirmed, where Defendant objected to the admission of lab test reports because the State destroyed the substance tested before trial, but failed to preserve his claim that the Texas Constitution’s “due course of law” provision is more protective than the federal Due Process Clause.

Texas Court of Criminal Appeals, April 08, 2009 Hammer v. State, No. PD-0786-08 Defendant’s indecency with a child conviction is reversed, where the trial court abused its discretion by preventing Defendant from cross-examining the victim about her alleged prior false rape accusation. ..

Texas Court of Criminal Appeals, April 08, 2009 Ex Parte Hathorn, No. AP-75917 Defendant’s death sentence is remanded for a new penalty phase, where the Supreme Court decided Penry v. Lynaugh, 492 U.S. 302 (1989), after his sentence, and that case required the jury to consider mitigating circumstances evidence during the penalty phase

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